Glossary of Torts - Negligence
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- Define negligence:
- Conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm. M/ consist of either an act or an omission to act where there is a duty to act.
- How do you analyze a negligence problem?
- 1. What d/ D do? Analyze duty of care and whether it was breached. People owe others a duty to us reasonable care so as to avoid unreasonable risks. Duty is breached when the actor fails to exercise such care.
2. What were the results of the D conduct? Did the D conduct actually cause P injury; did it proximately cause P injury; did P suffer any damages.
3. What did P do? Was the P contrib negl and was there an assumption of risk - if so, P own conduct defeats his claim.
- What are the prima facie elements of negligence?
- Duty -one has the duty to act as a reasonable person w/ act under similar circumstances, so as to avoid unreasonable risk of harm to others.
Breach - failure to conform to the reasonable person standard of care in a way that creates an unreasonable risk of harm to others. (Weigh burden on D to avoid risk and the utility of D conduct, against the probability of and likely gravity of the harm D conduct m/ cause)
Causation - m/b a causal connection b/w the D act or omission and the P injuries.
Damages - P has to suffer actual damages or c/n prevail.
- What is the general standard of care?
- Have a duty to act as a reasonable person w/ act in similar circumstances as to avoid unreasonable risk to others.
- What is negligence per se?
- Violation of a criminal statute which has three requirements:
1. if the statute provides a criminal penalty,
2. statute was designed to prevent kind of harm that befell the P and
3. P was a member of the class intended to be protected by the statute.
- When can D avoid liability in a negl per se claim?
- If D was unaware of the particular occasion for compliance, if compliance w/h/b more dangerous than violating the statute, if D reasonably attempted to comply or faced an emergency that prevented compliance.
- What is the balancing test in determining if the D breached the standard?
- Burden on the D to avoid risk and the utility of the D conduct is balanced against the probability and probable gravity of harm D conduct is likely to cause.
BEAMS (Bur, Util, Prob, Grav)
- What is the foreseeable P?
- You only owe a duty of care to foreseeable P.
- Must an indiv act affirmatively for the benefit of others?
- No, however, there are exceptions:
1. D act created the peril
2. A special relt mandates affirmative acts
3. D has undertaken to act for P benefit.
- What are the three means of proving a negl claim?
- Direct evidence, circumstantial evidence and res ipsa loquitur.
- What is res ipsa loquitur?
- (The thing speaks for itself)
Permits the factfinder to infer negl, where there is no direct evidence of negl. P m/ prove that:
1. There is no direct evidence of how D behaved in connection with the event that caused the injury
2. The event is of a kind that would not normally occur in the absence of negl
3. D was in exclusive control of the instrumentality causing injury
4. P d/n voluntarily contribute to the event that caused his injury.
- What is the difference b/w cause in fact and proximate cause?
- Cause in fact is the determination, under either the but for test or substantial factor test of whether D brought about P injuries.
Proximate cause involves the policy considerations limiting the scope of liability, determined primarily on the concept of foreseeability of risks and consequences. (Was the P injury w/in the scope of the risk created by D negl?)
- What is the But For test?
- D conduct is considered a cause in fact of an event if the vent w/n/h occurred but for the D conduct. Whether D conduct is the sole cause or one of several concurrent causes. Whether D conduct is the cause in fact of an event - standard test.
- What is the Substantial Factor test?
- D conduct is said to cause an event when it was a material element or substantial factor in producing it - only if there are multiple causes and the one youre examining is not a but for cause.
- What is an intervening cause?
- 1. Coming into active operation
2. In producing the result
3. After D negl
4. From a source independent of D negl.
- What are foreseeable intervening causes?
- Subseq forces which one should reasonably anticipate, or those which D s/ reasonably anticipate under the particular circumstances.
- Indiv are responsible for foreseeable intervening causes of damage. What m/b foreseeable, the intervening force itself, or the result?
- The result. Regardless of the cause, if the result is foreseeable, the original actor w/b liable. Exceptions:
1. Malicious, intentional tortious intervening acts
2. Intervention by one with a higher ethical duty to the victim
3. Extraordinarily negligent intervening conduct
4. Acts of God, where the resulting harm is of a different kind from that which made D conduct negl.
- What is a superseding force?
- Force coming into being after D negl act, which cancels D liability by breaking the chain of causation from D act to P injury. Unforeseeability of the results of the subseq force relieves D of liability. Not considered w/in the risk created by D original act.
- In order to prevail on a negl claim, the P has to prove actual damages, he c/n win w/o such proof. What types of damages qualify?
- General - non-economic losses.
Special - economic losses P suffers, past and future.
C/n recover punitive damages b/c supposed to punish D for particularly heinous conduct, negl is not intentional.
- What are the defenses to negl?
- Contributory negl
Assumption of risk
- What is assumption of risk?
- Indiv m/ know and appreciate the risk - P m/ actually know the risk he is incurring (objective)
M/ freely and voluntarily assume it.
P m/b completely barred from recovery.
- What is contributory negl?
- P conduct which d/n meet the standard of care for his own protection and is a cause of harm.
When it applies, it is a complete bar to any recovery by P. 46 states have modified to comparative negl by determining proportions of fault b/w D and P and allowing partial recovery due to fairness.
- What is the difference b/w contrib and avoidable consequences?
- Contrib - negl by P that takes place b/f any damage has occurred - P w/n/h suffered any harm.
Avoidable consequences - after a legal wring has occurred, while some damages m/h/b averted it bars recovery only for damages that c/h/b avoided.
- What is comparative negl?
- Rejects the all or nothing approach of contrib negl, and divides liability b/w P and D in proportion to their fault. P is allowed to recover a portion of his damages, reflecting the percentage of his injuries D caused.
- What are the major types of compar negl?
- Pure - P c/ recover damages from D no matter to what extent his own negl contributed to his injuries
Modified - P c/ only recover damages if his own fault caused less than a set fraction of his own injuries.
- What is the doctrine of Last Clear Chance?
- Used by P to rebut a claim of contrib negl - where the P w/ otherwise b/ ehld to h/b contrib, the D w/b liable if she had the last chance to avoid the harm, yet failed to do so.
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